United States v. Joseph Panagopoulos ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4327
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH PANAGOPOULOS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. Irene C. Berger,
District Judge. (1:10-cr-00099-1)
Submitted: November 30, 2011 Decided: December 7, 2011
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David O. Schles, LAW OFFICES OF DAVID SCHLES, Charleston, West
Virginia, for Appellant. John Lanier File, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Panagopoulos appeals his conviction and forty-
six-month sentence imposed after he pled guilty to use of a
communications facility to facilitate the distribution of
oxycodone, in violation of 21 U.S.C. § 843(b), (d)(1) (2006).
Panagopoulos’ attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating there are no
meritorious issues for appeal but questioning whether
Panagopoulos was denied effective assistance of counsel in the
proceedings below, whether the district court erred by failing
to order a competency evaluation before accepting Panagopoulos’
guilty plea, and whether an alleged scrivener’s error in the
sealed statement of reasons constitutes reversible error.
Panagopoulos was informed of his right to file a pro se
supplemental brief but did not file one. Because we find no
meritorious grounds for appeal, we affirm.
Panagopoulos asserts that he was denied the effective
assistance of counsel because his attorney refused to seek a
competency hearing prior to his entering his guilty plea and to
subpoena witnesses to testify regarding his mental state.
Because there is no conclusive evidence of ineffective
assistance of counsel on the face of the record before us, we
decline to address Panagopoulos’ claim in this appeal. See
2
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997)
(providing standard).
Next, Panagopoulos questions the propriety of his
conviction on the grounds that he was not competent to enter a
knowing and voluntary guilty plea and that his counsel’s
representation was ineffective. In light of these assertions,
Panagopoulos alleges the district court erred by accepting his
plea. Because Panagopoulos did not move in the district court
to withdraw his guilty plea, our review is for plain error.
United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
To establish plain error, Panagopoulos must show: (1) there was
an error; (2) the error was plain; and (3) the error affected
his substantial rights. United States v. Olano, 507 U.S. 725,
732 (1993). Even if Panagopoulos makes this three-part showing,
we may exercise our discretion to correct the error only if it
“seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. at 736 (internal quotation marks
omitted).
We have carefully reviewed the record and conclude
Panagopoulos cannot establish that the district court erred by
failing to conduct a competency hearing prior to accepting his
guilty plea. While it is true that a court “must ensure that
the defendant is competent to enter the plea,” United States v.
Damon, 191 F.3d 561, 564 (4th Cir. 1999), the district court did
3
so during Panagopoulos’ Fed. R. Crim. P. 11 hearing. The
district court closely questioned both Panagopoulos and his
counsel as to Panagopoulos’ competence and, after listening to
their statements and observing Panagopoulos’ demeanor first-
hand, determined Panagopoulos had “sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding[] and . . . a rational as well as factual
understanding of the proceedings against him.” Dusky v. United
States, 362 U.S. 402, 402 (1960) (stating test for legal
competence). Thus, we conclude the district court had no reason
to sua sponte order a competency hearing. See Godinez v. Moran,
509 U.S. 389, 401 n.13 (1993) (“[A] competency determination is
necessary only when a court has reason to doubt the defendant’s
competence.”). Moreover, the district court fully complied with
Rule 11 and ensured that Panagopoulos entered his guilty plea
knowingly and voluntarily and that a sufficient factual basis
supported the plea. See United States v. DeFusco, 949 F.2d 114,
116, 119-20 (4th Cir. 1991).
Finally, Panagopoulos draws our attention to an
alleged scrivener’s error in the sealed statement of reasons.
Because he raises this claim for the first time on appeal, our
review is for plain error. Martinez, 277 F.3d at 525. Our
review of the record leads us to conclude that there is no error
— plain or otherwise — in the statement of reasons. See, e.g.,
4
United States v. Akpan, 407 F.3d 360, 378 & n.73 (5th Cir. 2005)
(concluding that “24 months” in 18 U.S.C. § 3553(c) (2006)
refers to span of Guidelines range, not actual sentence
imposed).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Panagopoulos, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Panagopoulos requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Panagopoulos.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
5